Whether costs budget can be signed by a senior costs draftsman
PD 3E provides that a costs budget must be verified by a statement of truth signed by a “senior legal representative of the party”. In this case, it was claimed that the budget was a nullity because it was signed by a senior costs draftsman (who is not a solicitor).
Stuart-Smith J held that the draftsman was not a “senior legal representative” for the purpose of PD 3E. Although the practice direction does not define a “senior legal representative”, it was held that where (as is the case with PD 3E) a practice direction states that it supplements a particular rule of the CPR, regard can be had to the CPR to ensure consistency. CPR r2.3(1) defines a “legal representative” as (inter alia), an authorised person who “has been instructed to act for a party in relation to the proceedings”. The judge concluded that “viewed overall, the CPR 2.3(1) definition of “legal representative” seems to me to connote someone who is representing in a legal capacity, which is not what is being done by a Costs Draftsman whose only involvement consists in preparing a costs budget and who does not give any form of legal advice or legally based representation”.
Even if that was wrong, the costs draftsman in this case could not be descried as “senior” because, out of the three people listed in the form, he was the least senior, at least by reference to his charging rate. Furthermore, the practice direction requires “the certifier to be in a position independently to assess the weight of the case in terms of legal, factual and documentary complexity” and here, the draftsman knew nothing about the underlying case.
However, the judge refused to find that the budget was a nullity because of this “irregularity”. It could not be said that the defendant had failed to provide any budget at all. Even if that was not the case and relief from sanctions was required, the judge would have granted such relief because the breach was trivial. The defendant was ordered to remedy the irregularity and to pay the party who brought this to the court’s attention GBP 50.